Employers who believe they have been subjected to frivolous whistleblower suits are starting to say “enough is enough,” and searching for ways to vindicate their rights and send a strong message. This case is illustrative and caught our eye. Kentucky employer Armstrong Coal (the Company) recently filed suit in Kentucky state court against former employee Reuben Shemwell, a miner, alleging that he abused the legal process by filing an unmeritorious whistleblower claim. Armstrong Coal Co., Inc. v. Reuben Shemwell, No. 12 Cl 397 (Muhlenberg County Circuit Court, Kentucky).

More specifically, Shemwell filed a whistleblower complaint under Section 105(c) of the federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c)(2) (2006) (MSHA), alleging he was discharged for voicing concerns about safety conditions. He asserted that the Company’s proffered reason for discharging him – namely, excessive cell phone use – was pretextual. Reinstatement initially was ordered, although the Mine Safety and Health Administration (Administration) apparently dropped Shemwell’s claim thereafter. The Company then filed suit against Shemwell in Kentucky state court, alleging his claim was frivolous. In the complaint, the Company pointed to the multiple warnings Shemwell received for excessive cell phone use on the job and also noted that the Administration chose not to pursue his claim. As noted in a recent article in the Huffington Post, the Administration, in turn, filed a complaint against the Company alleging that Armstrong’s filing of the lawsuit against Shemwell was “an attempt to discourage miners from filing discrimination complaints.”

Given the surge of whistleblower claims under countless laws, and rising concerns that many whistleblower claims are opportunistic and/or vexatious, it is not particularly surprising to see employers are looking for ways to send the message that “enough is enough.” Indeed, a meritless whistleblower suit could significantly harm a company’s reputation, and cause it to needlessly incur substantial fees that it can’t recover even if it prevails in the litigation. A ruling in the Company’s favor could send a strong message to individuals who abuse whistleblower laws. On the other hand, a ruling in favor of the Administration’s claim against the Company could certainly cause employers to rethink the strategy of pursuing abuse of process-type claims.

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Photo of Steven J. Pearlman Steven J. Pearlman

Steven J. Pearlman is a partner in the Labor & Employment Law Department and Co-Head of the Whistleblowing & Retaliation Group and the Restrictive Covenants, Trade Secrets & Unfair Competition Group.

Steven’s practice covers the full spectrum of employment law, with a particular…

Steven J. Pearlman is a partner in the Labor & Employment Law Department and Co-Head of the Whistleblowing & Retaliation Group and the Restrictive Covenants, Trade Secrets & Unfair Competition Group.

Steven’s practice covers the full spectrum of employment law, with a particular focus on defending companies against claims of employment discrimination, retaliation and harassment; whistleblower retaliation; restrictive covenant violations; theft of trade secrets; and wage-and-hour violations. He has successfully tried cases in multiple jurisdictions, and defended one of the largest Illinois-only class actions in the history of the U.S. District Court for the Northern District of Illinois. He also secured one of only a few ex parte seizures orders that have been issued under the Defend Trade Secrets Act, and obtained a world-wide injunction in federal litigation against a high-level executive who jumped ship to a competitor.

Reporting to boards of directors, their audit committees, CEOs and in-house counsel, Steven conducts sensitive investigations and has testified in federal court. His investigations have involved complaints of sexual harassment involving C-suite officers; systemic violations of employment laws and company policies; and fraud, compliance failures and unethical conduct.

Steven was recognized as Lawyer of the Year for Chicago Labor & Employment Litigation in the 2023 edition of The Best Lawyers in America. He is a Fellow of the College of Labor and Employment Lawyers.  Chambers describes Steven as an “outstanding lawyer” who is “very sharp and very responsive,” a “strong advocate,” and an “expert in his field.” Steven was 1 of 12 individuals selected by Compliance Week as a “Top Mind.” Earlier in his career, he was 1 of 5 U.S. lawyers selected by Law360 as a “Rising Star Under 40” in the area of employment law and 1 of “40 Illinois Attorneys Under Forty to Watch” selected by Law Bulletin Publishing Company. Steven is a Burton Award Winner (U.S. Library of Congress) for “Distinguished Legal Writing.”

Steven has served on Law360’s Employment Editorial Advisory Board and is a Contributor to Forbes.com. He has appeared on Bloomberg News (television and radio) and Yahoo! Finance, and is regularly quoted in leading publications such as The Wall Street Journal.

The U.S. Chamber of Commerce has engaged Steven to serve as lead counsel on amicus briefs to the U.S. Supreme Court and federal circuit courts of appeal. He was appointed to serve as a Special Assistant Attorney General for the State of Illinois in employment litigation matters. He has presented with the Solicitor of the DOL, the Acting Chair of the EEOC, an EEOC Commissioner, Legal Counsel to the EEOC and heads of the SEC, CFTC and OSHA whistleblower programs. He is also a member of the Sedona Conference, focusing on trade secret matters.

Photo of Rachel Fischer Rachel Fischer

Rachel S. Fischer is a senior counsel in the Labor & Employment Law Department.

Rachel represents employers in all types of employment-related disputes, including defending clients against claims of discrimination, harassment, retaliation, wrongful discharge, whistleblowing, breach of contract, and in wage and hour…

Rachel S. Fischer is a senior counsel in the Labor & Employment Law Department.

Rachel represents employers in all types of employment-related disputes, including defending clients against claims of discrimination, harassment, retaliation, wrongful discharge, whistleblowing, breach of contract, and in wage and hour matters. She represents employers in federal and state courts, arbitration tribunals, and before administrative agencies, and has litigated both single plaintiff and class action lawsuits. As an experienced trial lawyer, Rachel has successfully litigated numerous cases from complaint through jury verdict or arbitral award.

Rachel represents employers across a wide variety of industries, including banking and finance, law firms, media and entertainment, sports, and higher education.

Rachel also counsels clients on a broad range of employment law matters, including investigations, employee terminations and discipline, and employment policies and procedures.